-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IGCTbpDRkmjwFCuCZn9ELCVqn6bNmLDtz8MB3Po+MNOd0jDzGsMgHYFOZ6ZrmaRc QBlBRHbPhm5RA7OSFAL1Hw== 0000950130-01-001046.txt : 20010228 0000950130-01-001046.hdr.sgml : 20010228 ACCESSION NUMBER: 0000950130-01-001046 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010226 GROUP MEMBERS: CHEUNG KONG (HOLDINGS) LIMITED GROUP MEMBERS: FORTHCOMING ERA LIMITED GROUP MEMBERS: HUTCHISON WHAMPOA LTD /WAV GROUP MEMBERS: PRIME PRO GROUP LIMITED SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PRICELINE COM INC CENTRAL INDEX KEY: 0001075531 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 061528493 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-56083 FILM NUMBER: 1554499 BUSINESS ADDRESS: STREET 1: 800 CONNECTICUT AVE CITY: NORWALK STATE: CT ZIP: 06854 BUSINESS PHONE: 2037053000 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HUTCHISON WHAMPOA LTD /WAV CENTRAL INDEX KEY: 0000933662 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: HUTCHISON HOUSE 22ND FLOOR CITY: HONG KONG STATE: K3 ZIP: 00000 BUSINESS PHONE: 8522128118 MAIL ADDRESS: STREET 1: 22ND FL HUTCHISON HOUSE STREET 2: 10 HARCOURT RD CITY: HONG KONG STATE: K3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HUTCHINSON WHAMPOA LTD /WAV DATE OF NAME CHANGE: 19971204 SC 13D 1 0001.txt SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 priceline.com Incorporated -------------------------- (Name of Issuer) Common Stock, par value $0.008 per share ---------------------------------------- (Title of Class of Securities) 741503106 --------- (CUSIP Number) Edith Shih Hutchison Whampoa Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong (852-2128-1188) __________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: John A. Otoshi Dewey Ballantine LLP Suite 701 Edinburgh Tower, The Landmark 15 Queen's Road Central Hong Kong (852-2509-7000) __________ February 15, 2001 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d- 1(b)(3) or (4), check the following box _____. SCHEDULE 13D CUSIP NO. 741503106 ---------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HUTCHISON WHAMPOA LIMITED-Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Hong Kong - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.8% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 HC, CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO. 741503106 ---------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON FORTHCOMING ERA LIMITED-Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.8% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 --------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON CHEUNG KONG (HOLDINGS) LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 WC - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 Hong Kong - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 35,093,244 (including shares disclaimed, see 11 below) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 35,093,244 (including shares disclaimed, see 11 below) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 35,093,244, of which Cheung Kong expressly disclaims beneficial ownership of 17,546,622 shares beneficially owned by Hutchison Whampoa Limited and Forthcoming Era Limited - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [X] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 17.5% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 HC, CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO.741503106 --------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON PRIME PRO GROUP LIMITED - Not Applicable - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS 4 AF - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 British Virgin Islands - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF -0- SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 17,546,622 ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING -0- PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 17,546,622 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 17,546,622 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 8.8% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 CO - ------------------------------------------------------------------------------ Item 1. Security and Issuer. -------------------- This statement on Schedule 13D relates to the Common Stock, par value $0.008 per share (the "Common Stock"), of priceline.com Incorporated, a Delaware corporation (the "Issuer"). The Issuer's principal executive office is 800 Connecticut Avenue, Norwalk, Connecticut 06854. Item 2. Identity and Background. ----------------------- This statement is filed by Hutchison Whampoa Limited, a Hong Kong company ("HWL"); Forthcoming Era Limited ("FEL"), a British Virgin Islands company and an indirect wholly-owned subsidiary of HWL; Cheung Kong (Holdings) Limited ("Cheung Kong"), a Hong Kong company and a 49.97% shareholder of HWL; and Prime Pro Group Limited ("PPG"), a British Virgin Islands company and an indirect wholly-owned subsidiary of Cheung Kong. HWL - --- The principal business of HWL is that of investment holding with diversified interests and activities in the following core businesses: ports and related services, telecommunications and e-commerce, property and hotels, retail and manufacturing, and energy and infrastructure. The principal business address of HWL is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. HWL indirectly owns 100% of the issued shares of FEL. HWL's beneficial ownership reported herein is through its interest in FEL. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of HWL and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule I hereto and are incorporated herein by reference. During the past five years, neither HWL nor, to the best knowledge of HWL, any of its executive officers and directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgement, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. FEL - --- The principal business of FEL is investment holding. The registered office address of FEL is P.O. Box 957 Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of FEL and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule II hereto, respectively, and are incorporated herein by reference. During the past five years, neither FEL nor, to the best knowledge of FEL, any of their executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Cheung Kong - ----------- The principal business of Cheung Kong is investment holding and project management, real estate property development and investment, real estate agency and management and securities investment. The principal business address of Cheung Kong is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. Cheung Kong indirectly owns 100% of the issued shares of PPG. Cheung Kong's beneficial ownership reported herein and not disclaimed is through its interest in PPG. Cheung Kong owns 49.97% of the issued shares of HWL and may, pursuant to Rule 13d-3 ("Rule 13d-3") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), be deemed to control the voting and disposition of the shares of Common Stock beneficially owned by HWL and FEL. However, Cheung Kong disclaims beneficial ownership of the shares of Common Stock beneficially owned by HWL and FEL and the filing of this statement shall in no way be construed as an admission that Cheung Kong is, for purposes of Section 13(d) or 13(g) of the Exchange Act, the beneficial owner of such shares. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of Cheung Kong and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule III hereto and are incorporated herein by reference. During the past five years, neither Cheung Kong nor, to the best knowledge of Cheung Kong, any of its executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 2 PPG - --- The principal business of PPG is investment holding. The registered office address of PPG is P.O. Box 957 Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of PPG and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule IV hereto, respectively, and are incorporated herein by reference. During the past five years, neither PPG nor, to the best knowledge of PPG, any of their executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- The total purchase price of the 17,546,622 shares purchased by FEL was US$36,847,906.20. The funds for FEL's purchase were provided by HWL from working capital. The total purchase price of the 17,546,622 shares purchased by PPG was US$36,847,906.20. The funds for PPG's purchase were provided by Cheung Kong from working capital. Item 4. Purpose of Transaction. ---------------------- HWL, FEL, Cheung Kong and PPG currently own the shares of Common Stock reported herein for investment purposes only. Each of HWL, FEL, Cheung Kong and PPG intends to review from time to time its ownership of such shares and may, depending upon its evaluations of the business and prospects of the Issuer, or such other considerations as it may consider relevant, determine to increase, decrease or dispose of its holdings in the Common Stock. Other than as disclosed in this Item 4 and Item 6, HWL, FEL, Cheung Kong and PPG filing this Schedule have no plans or proposals that relate to or would result in: (a) The acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; (b) An extraordinary corporate transaction involving the Issuer or any of its subsidiaries; 3 (c) A sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; (d) Any change in the present Board of Directors or management of the Issuer, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board; (e) A material change in the present capitalization or dividend policy of the Issuer; (f) Any other material change in the Issuer's business or corporate structure; changes in the Issuer's charter or bylaws or other actions that might impede the acquisition of control of the Issuer by any other person; (g) Causing securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an interdealer quotation system of a registered national securities association; (h) Causing securities of the Issuer to be eligible for termination of registration pursuant to the Exchange Act, or any other similar action; or (i) A class of equity securities of the issuer becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a) - (b) HWL, through its ownership of FEL, is deemed, for purposes of Rule 13d-3 under the Exchange Act, to be the beneficial owner of 17,546,622 shares of Common Stock, representing 8.8% of the Common Stock outstanding, and to have shared power over the voting and disposition of such shares. FEL is the beneficial owner of 17,546,622 shares of Common Stock, representing 8.8% of the outstanding Common Stock and has shared power over the voting and disposition of such shares. Cheung Kong, through its ownership of PPG, is deemed, for purposes of Rule 13d-3 under the Exchange Act, to be the beneficial owner of 17,546,622 shares of Common Stock, representing 8.8% of the Common Stock outstanding, and to have shared power over the voting and disposition of such shares. In addition, Cheung Kong, through its ownership of 49.97% of the issued shares of HWL, may be deemed to share voting and dispositive power over the shares of Common Stock beneficially owned by HWL and FEL. However, pursuant to Rule 13d-4 under the Exchange Act, Cheung Kong expressly disclaims beneficial ownership of such shares. PPG is the beneficial owner of 17,546,622 shares of Common Stock, representing 8.8% of the outstanding Common Stock, and has shared power over the voting and disposition of such shares. 4 Except as described herein, none of HWL, FEL, Cheung Kong or PPG nor, to the best knowledge of HWL, FEL, Cheung Kong and PPG, any executive officer or director of HWL, FEL, Cheung Kong or PPG (i) beneficially owns any securities of the Issuer as of the date hereof or (ii) has any right as of the date hereof to acquire, directly or indirectly, any beneficial ownership of other securities of the Issuer. (c) Except as set forth herein, none of HWL, FEL, Cheung Kong or PPG nor, to the best knowledge of HWL, FEL, Cheung Kong and PPG, any executive officer or director of HWL, FEL, Cheung Kong or PPG has effected any transaction in shares of the Common Stock, or securities convertible into shares of the Common Stock, during the past 60 days. (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- On February 15, 2001, FEL and PPG entered into a Stock Purchase Agreement with the Issuer (the "Issuer Stock Purchase Agreement"), pursuant to which FEL and PPG each purchased 11,904,761 shares of Common Stock at a price of US$2.10 per share. Pursuant to the Issuer Stock Purchase Agreement, FEL and PPG purchased a total of 23,809,522 shares of Common Stock for an aggregate consideration of US$49,999,996.20. On February 15, 2001, FEL and PPG also entered into a Stock Purchase Agreement with Jay Walker and The Jay S. Walker Irrevocable Credit Trust (the "Walker Stock Purchase Agreement"), pursuant to which FEL and PPG each purchased 4,491,861 and 1,150,000 shares of Common Stock from Jay Walker and The Jay S. Walker Irrevocable Credit Trust, respectively, at a price of US$2.10 per share. Pursuant to the Walker Stock Purchase Agreement, FEL and PPG purchased a total of 11,283,722 shares of Common Stock for an aggregate consideration of US$23,695,816.20. Concurrently with entering into the Issuer Stock Purchase Agreement and the Walker Stock Purchaser Agreement, FEL, PPG and the Issuer entered into a Registration Rights Agreement dated as of February 15, 2001, pursuant to which the Issuer granted FEL and PPG certain demand and piggyback registration rights for the shares of Common Stock owned by them, exercisable at any time after February 15, 2001, except in certain circumstances. Under the Issuer Stock Purchase Agreement, FEL and PPG have agreed that, without the prior written consent of the Issuer's Board of Directors, and subject to certain other exceptions, they will not (and will cause their affiliates not to) acquire or propose to acquire additional securities which would result in FEL and PPG owning an aggregate of more than 25% of the voting securities of the Issuer, or take or propose to take certain actions, including a merger or other business combination involving the 5 Issuer, a purchase of a material portion of the Issuer's assets, a proxy contest, a voting arrangement or a tender or exchange offer, which could relate to a potential change of control of the Issuer. Under the Issuer Stock Purchase Agreement, FEL is entitled to nominate one person to the Issuer's Board of Directors so long as it continues to hold 70% of the shares of Common Stock purchased by FEL pursuant to the Issuer Stock Purchase Agreement, or, if less, 5% of the Issuer's outstanding voting securities. Item 7. Material to be Filed as Exhibits. -------------------------------- The documents which have been filed as Exhibits are listed in the Exhibit Index herein. 6 SIGNATURE --------- After reasonable inquiry and to the best of its knowledge and belief, HWL certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: February 23, 2001 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director After reasonable inquiry and to the best of its knowledge and belief, FEL certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: February 23, 2001 FOR AND ON BEHALF OF FORTHCOMING ERA LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director After reasonable inquiry and to the best of its knowledge and belief, Cheung Kong certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: February 23, 2001 FOR AND ON BEHALF OF CHEUNG KONG (HOLDINGS) LIMITED By: /s/ Ip Tak Chuen, Edmond _______________________________ Name: Ip Tak Chuen, Edmond Title: Director 7 After reasonable inquiry and to the best of its knowledge and belief, PPG certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: February 23, 2001 FOR AND ON BEHALF OF PRIME PRO GROUP LIMITED By: /s/ Ip Tak Chuen, Edmond ----------------------------------- Name: Ip Tak Chuen, Edmond Title: Director 8 SCHEDULE I ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- LI Ka-shing Hong Kong Chairman, Hutchison Whampoa Limited 7th Floor, Cheung Kong Center Chairman, Cheung Kong (Holdings) 2 Queen's Road Central Limited Hong Kong LI Tzar Kuoi, Victor Hong Kong Deputy Chairman and Executive Director, 7th Floor, Cheung Kong Center Hutchison Whampoa Limited 2 Queen's Road Central Chairman, Cheung Kong Infrastructure Hong Kong Holdings Limited/2/ Co-Chairman, Husky Energy Inc./8/ Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong FOK Kin-ning, Canning British Group Managing Director and Executive Director, Hutchison Whampoa Limited Chairman, Hutchison Telecommunications (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Co-Chairman, Husky Energy Inc./8/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Non-executive Director, Cheung Kong (Holdings) Limited Director, VoiceStream Wireless Corporation/6/
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHOW WOO Mo Fong, Susan British Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Forthcoming Era Limited Non-executive Director, TOM.COM LIMITED/7/ Frank John SIXT Canadian Group Finance Director and Executive Director, Hutchison Whampoa Limited Chairman, TOM.COM LIMITED/7/ Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./8/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, Cheung Kong (Holdings) Limited Director, Forthcoming Era Limited LAI Kai Ming, Dominic Canadian Executive Director, Hutchison Whampoa Limited
2 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- George Colin MAGNUS British Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Chairman, Hongkong Electric Holdings Hong Kong Limited/3/ Deputy Chairman, Cheung Kong Infrastructure Holding Limited/2/ Deputy Chairman, Cheung Kong (Holdings) Limited KAM Hing Lam Hong Kong Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Group Managing Director, Cheung Hong Kong Kong Infrastructure Holdings Limited/2/ Deputy Managing Director, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Michael David KADOORIE British Independent Non-Executive Director, 24th Floor, St. George's Hutchison Whampoa Limited Building, 2 Ice House Street Chairman, CLP Holdings Limited Central, Hong Kong (investment holding), 147 Argyle Street, Kowloon, Hong Kong Chairman, The Hongkong and Shanghai Hotels Limited (hotel catering and real estate), 8th Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Chairman, Heliservices (Hong Kong) Limited (provision of helicopter services), 2107 St. George's Building, 2 Ice House Street, Central, Hong Kong
3 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- LI Fook-wo British Independent Non-Executive Director, 1416 Prince's Building Hutchison Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Hong Kong Limited (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Johnson Electric Holdings Limited (micromotors), Cedar House, 41 Cedar Avenue, Hamilton HM 12, Bermuda Simon MURRAY British Non-Executive Director, Hutchison Room 2108 Gloucester Tower Whampoa Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Independent Non-executive Director, Cheung Kong (Holdings) Limited Director, Orient Overseas (International) Limited (shipping), 33rd Floor, Harbour Centre, 25 Harbour Road, Hong Kong OR Ching Fai, Raymond British Independent Non-Executive Director, 1 Queen's Road Central Hutchison Whampoa Limited Hong Kong General Manager, The Hongkong and Shanghai Banking Corporation Limited (banking), 1 Queen's Road Central, Hong Kong Chairman, HSBC Insurance (Asia Pacific) Holdings Limited (Insurance), 40th Floor, Sun Hung Kai Centre, Wanchai, Hong Kong Director, HSBC Investment Bank Asia Limited (investment banking), 1 Queen's Road Central, Hong Kong
4 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- William SHURNIAK Canadian Independent Non-Executive Director, Hutchison Whampoa Limited Deputy Chairman, Husky Energy Inc./8/ Peter Alan Lee VINE British Non-Executive Director, Hutchison Suite 1005 World Wide House Whampoa Limited 19 Des Voeux Road Central Director, Cross-Harbour (Holdings) Ltd. Hong Kong (tunnel operation), 16th Floor, Ocean Centre, Harbour City, Kowloon, Hong Kong Director, International Maritime Carriers (Holdings) Limited (shipping), 17th Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Director, Liu Chong Hing Investments Limited (investments), 24 Des Voeux Road Central, Hong Kong Director, Liu Chong Hing Bank Limited (banking), 24 Des Voeux Road Central, Hong Kong WONG Chung Hin British Non-Executive Director, Hutchison 1225 Prince's Building Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Limited Hong Kong (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Hongkong Electric Holdings Limited/3/
SCHEDULE II ----------- Executive Officers and Directors of ----------------------------------- Forthcoming Era Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHOW WOO Mo Fong, Susan British Director, Forthcoming Era Limited Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, TOM.COM LIMITED/7/ Frank John SIXT Canadian Director, Forthcoming Era Limited Group Finance Director and Executive Director, Hutchison Whampoa Limited Chairman, TOM.COM LIMITED/7/ Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./8/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, Cheung Kong (Holdings) Limited
SCHEDULE II (continued) ----------- Executive Officers and Directors of ----------------------------------- Forthcoming Era Limited ----------------------- As of February 23, 2000 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- -------------------------------- HO Wai Leung, Edmond British Director, Forthcoming Era Limited 9 Queen Street, Mayfair, Director, Hutchison Whampoa (Europe) London W1X 7PH, Limited (consultancy services), 9 Queen United Kingdom Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa (UK) Limited (investment holding), 9 Queen Street, Mayfair, London W1X 7PH, United Kingdom Director, Hutchison Whampoa Properties (Europe) Limited (project management), 100 New Bridge Street, London EC4V 6JA, United Kingdom Neil Douglas McGEE Australian Director, Forthcoming Era Limited 707-8th Avenue S.W., Box Vice President and Chief Financial Officer, 6525, Station D, Calgary, Husky Energy Inc. 8 Alberta, Canada, T2P 3G7 Director, Prime Pro Group Limited SNG Cheng Khoong, Robin Singaporean Director, Forthcoming Era Limited 150 Beach Road #17-06, Managing Director, Copthorne International Singapore 189720 Investment Ltd (fund management), 150 Beach Road #17-06, Singapore 189720
2 SCHEDULE III ------------ Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- LI Ka-shing Hong Kong Chairman, Cheung Kong (Holdings) Limited Chairman, Hutchison Whampoa Limited LI Tzar Kuoi, Victor Hong Kong Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman and Executive Director, Hutchison Whampoa Limited Co-Chairman, Husky Energy Inc./8/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong George Colin MAGNUS British Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Hongkong Electric Holdings Limited/3/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hutchison Whampoa Limited KAM Hing Lam Hong Kong Deputy Managing Director, Cheung Kong (Holdings) Limited Group Managing Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hutchison Whampoa Limited Executive Director, Hongkong Electric Holdings Limited/3/
SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHUNG Sun Keung, Davy Hong Kong Executive Director, Cheung Kong (Holdings) Limited IP Tak Chuen, Edmond Hong Kong Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Prime Pro Group Limited Non-executive Director, TOM.COM LIMITED/7/ PAU Yee Wan, Ezra Hong Kong Executive Director, Cheung Kong (Holdings) Limited Director, Prime Pro Group Limited WOO Chia Ching, Grace U.S.A. Executive Director, Cheung Kong (Holdings) Limited CHIU Kwok Hung, Justin Hong Kong Executive Director, Cheung Kong (Holdings) Limited LEUNG Siu Hon British Independent Non-executive Director, 502 Aon China Building Cheung Kong (Holdings) Limited 29 Queen's Road Central Solicitor, Messrs. S.H. Leung & Co. Hong Kong (solicitors' firm), 502 Aon China Building, 29 Queen's Road Central, Hong Kong
2 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- FOK Kin-ning, Canning British Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Chairman, Hutchison Telecommunications Hong Kong (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Co-Chairman, Husky Energy Inc./8/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Group Managing Director and Executive Director, Hutchison Whampoa Limited Director, VoiceStream Wireless Corporation/6/ Frank John SIXT Canadian Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Chairman, TOM.COM LIMITED/7/ Hong Kong Group Finance Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Husky Energy Inc./8/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Forthcoming Era Limited
3 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHOW Kun Chee, Roland British Independent Non-executive Director, 12th Floor, Prince's Building Cheung Kong (Holdings) Limited Chater Road Solicitor, Herbert Tsoi and Partners Hong Kong (law firm), 602, Aon China Building, 29 Queen's Road Central, Hong Kong WONG Yick-ming, Rosanna Hong Kong Independent Non-executive Director, Room 906, Duke of Windsor Social Cheung Kong (Holdings) Limited Service Building Member of the Executive Council of the 15 Hennessy Road Hong Kong Special Administrative Wanchai, Hong Kong Region Executive Director, Hong Kong Federation of Youth Groups (charitable organisation), Room 906, Duke of Windsor Social Service Building, 15 Hennessy Road, Wanchai, Hong Kong Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong HUNG Siu-lin, Katherine Hong Kong Non-executive Director, Cheung Kong (Holdings) Limited YEH Yuan Chang, Anthony Hong Kong Independent Non-executive Director, 26th Floor, Tower A Cheung Kong (Holdings) Limited Regent Centre Honorary Life President, Tai Ping 63 Wo Yi Hop Road Carpets International Ltd. (carpet Kwai Chung manufacturing), 26th Floor, Tower A, Hong Kong Regent Centre, 63 Wo Yi Hop Road, Kwai Chung, Hong Kong
4 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHOW Nin Mow, Albert Hong Kong Non-executive Director, Cheung Kong 27th Floor, Henley Building (Holdings) Limited 5 Queen's Road Central Executive Director, Hong Kong Hong Kong Holdings Limited (investment holdings), 27th Floor, Henley Building, 5 Queen's Road Central, Hong Kong Simon MURRAY British Independent Non-executive Director, Room 2108 Gloucester Tower Cheung Kong (Holdings) Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Non-Executive Director, Hutchison Whampoa Limited Director, Orient Overseas (International) Limited (shipping), 33rd Floor, Harbour Centre, 25 Harbour Road, Hong Kong KWOK Tun-li, Stanley Canadian Independent Non-executive Director, Ste 970-355 Burrard Street Cheung Kong (Holdings) Limited Vancouver, British Columbia Director, Amara International Investment V6C 2G8, Canada Corporation (investment holdings), Ste 970-355 Burrard Street, Vancouver, British Columbia, V6C 2G8, Canada
5 SCHEDULE IV ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- IP Tak Chuen, Edmond Hong Kong Director, Prime Pro Group Limited Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Non-executive Director, TOM.COM LIMITED/7/ PAU Yee Wan, Ezra Hong Kong Director, Prime Pro Group Limited Executive Director, Cheung Kong (Holdings) Limited LAU Chin Sung, John Australian Director, Prime Pro Group Limited 707- 8th Avenue S.W. President and Chief Executive Officer, Box 6525 Station D Husky Energy Inc./8/ Calgary, Alberta Canada T2P 3G7 Neil Douglas McGEE Australian Director, Prime Pro Group Limited 707-8th Avenue S.W. Director, Forthcoming Era Limited Box 6525 Station D Vice President and Chief Financial Calgary, Alberta Officer, Husky Energy Inc./8/ Canada, T2P 3G7 YEO May Ann, Annie Singaporean Director, Prime Pro Group Limited 150 Beach Road General Manager, Property Enterprises #17-03 Gateway West Development Pte Ltd, Japura Pte Ltd, Singapore 189720 Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720
SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Prime Pro Group Limited ----------------------- As of February 23, 2001 -----------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1b/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- CHUI Sing Loi Singaporean Director, Prime Pro Group Limited 150 Beach Road Senior Project Manager, Property #17-03 Gateway West Enterprises Development Pte Ltd, Japura Singapore 189720 Pte Ltd, Japura Development Pte Ltd and Glenfield Investments Pte Ltd (all are property development), all at 150 Beach Road, #17-03 Gateway West, Singapore 189720
2 Notes:- 1a. Unless otherwise indicated, the business address of each of the named persons is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. 1b. Unless otherwise indicated, the business address of each of the named persons is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. 2. The principal business address of Cheung Kong Infrastructure Holdings Limited is 12th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. The principal business of Cheung Kong Infrastructure Holdings Limited is the development, investment and operation of infrastructure businesses in Hong Kong, the PRC and the Asia-Pacific Region. 3. The principal business address of Hongkong Electric Holdings Limited is Electric Centre, 28 City Garden Road, North Point, Hong Kong. The principal business of Hongkong Electric Holdings Limited is generation and supply of electricity. 4. The principal business address of Hutchison Telecommunications (Australia) Limited is Level 3, 504 Pacific Highway, St. Leonards NSW 2065, Sydney, Australia. The principal business of Hutchison Telecommunications (Australia) Limited is telecommunications. 5. The principal business address of Partner Communications Company Ltd. is 8 Amal Street, Afeq Industrial Park, Rosh Ha'ayin 48103, Israel. The principal business of Partner Communications Company Ltd. is cellular mobile telephone services. 6. The principal business address of VoiceStream Wireless Corporation is 3650 131st Avenue SE, Bellevue, Washington 98006, United States of America. The principal business of VoiceStream Wireless Corporation is wireless communications systems. 7. The principal business address of TOM.COM LIMITED is 48/F., The Center, 99 Queen's Road Central, Hong Kong. The principal business of TOM.COM LIMITED is the development of software and computer network systems and provision of related services, events production and the operation of an Internet portal delivering Internet infotainment, contents and services. 8. The principal business address of Husky Energy Inc. is 707-8th Avenue S.W., Box 6525 Station D, Calgary, Alberta, Canada, T2P 3G7. The principal business of Husky Energy Inc. is investment in oil and gas. EXHIBIT INDEX ------------- Exhibit No. Description - ----------- ----------- 1. Agreement with respect to filing of Schedule 13D 2. Stock Purchase Agreement, dated as of February 15, 2001, by and among priceline.com Incorporated, Forthcoming Era Limited and Prime Pro Group Limited (Incorporated by reference to Exhibit 99.3 to priceline.com Incorporated's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2001). 3. Registration Rights Agreement, dated as of February 15, 2001, by and among priceline.com Incorporated, Forthcoming Era Limited and Prime Pro Group Limited (Incorporated by reference to Exhibit 99.4 to priceline.com Incorporated's Current Report on Form 8-K filed with the Securities and Exchange Commission on February 16, 2001). 4. Stock Purchase Agreement, dated as of February 15, 2001, by and among Jay Walker, Jay S. Walker Irrevocable Credit Trust, Forthcoming Era Limited and Prime Pro Group Limited EX-99.1 2 0002.txt AGREEMENT EXHIBIT 1 --------- AGREEMENT In accordance with Reg. S. 13d-1(f)(1), each of the undersigned hereby agrees that Hutchison Whampoa Limited shall file on behalf of each of them this Schedule 13D relating to the Common Stock, $0.008 par value, in priceline.com Incorporated, to which this Agreement is an Exhibit and such statements and amendments thereto as may be required to be filed with the United States Securities and Exchange Commission. Dated: February 23, 2001 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Frank J. Sixt --------------------------------------- Name: Frank J. Sixt Title: Director FOR AND ON BEHALF OF FORTHCOMING ERA LIMITED By: /s/ Frank J. Sixt --------------------------------------- Name: Frank J. Sixt Title: Director FOR AND ON BEHALF OF CHEUNG KONG (HOLDINGS) LIMITED By: /s/ Ip Tak Chuen, Edmond --------------------------------------- Name: Ip Tak Chuen, Edmond Title: Director FOR AND ON BEHALF OF PRIME PRO GROUP LIMITED By: /s/ Ip Tak Chuen, Edmond --------------------------------------- Name: Ip Tak Chuen, Edmond Title: Director 3 EX-99.4 3 0003.txt STOCK PURCHASE AGREEMENT EXHIBIT 4 ================================================================================ STOCK PURCHASE AGREEMENT among JAY WALKER, an individual JAY S. WALKER IRREVOCABLE CREDIT TRUST PRIME PRO GROUP LIMITED, a British Virgin Islands Company and FORTHCOMING ERA LIMITED, a British Virgin Islands Company __________________ Dated as of February 15, 2001 __________________ ================================================================================ STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of --------- February 15, 2001, by and among Mr. Jay S. Walker, an individual ("Walker") and ------ the Jay S. Walker Irrevocable Credit Trust (the "Trust") (Walker and the Trust ----- are each referred to as a "Seller" and are collectively referred to as the ------ "Sellers"), Prime Pro Group Limited, a British Virgin Islands company ("PPG") ------- --- and wholly owned subsidiary of Cheung Kong (Holdings) Limited, a Hong Kong corporation, and Forthcoming Era Limited, a British Virgin Islands company ("FEL") and wholly owned subsidiary of Hutchison Whampoa Limited, a Hong Kong --- corporation (PPG and FEL are each a "Purchaser", and collectively the --------- "Purchasers"). ---------- NOW, THEREFORE, the parties hereto hereby agree as follows. ARTICLE I. DEFINITIONS As used in this Agreement, the following terms shall have the following meanings: "Affiliate" shall mean, with respect to any person, any other person --------- directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person and, in the case of a person who is an individual, shall include (i) members of such specified person's immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of which are such specified person or members of such person's immediate family as determined in accordance with the foregoing clause (i). For the purposes of this definition, "control," when used with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. "Agreement" shall have the meaning set forth in the Preamble. --------- "Applicable Law" shall mean, with respect to any person, any law, -------------- statute, rule, regulation, order, writ, injunction, judgment or decree of any Governmental Authority to which such person or any of its subsidiaries is bound or to which any of their respective properties is subject. "Closing" shall have the meaning set forth in Section 2.2. ------- "Common Stock" shall mean the common stock, par value $.008 per share, ------------ of the Company. "Company" shall mean priceline.com Incorporated, a Delaware ------- corporation. "Company Stock Purchase Agreement" shall mean the Stock Purchase -------------------------------- Agreement, dated as of the date hereof, among the Company and the Purchasers. "Documents" shall mean (i) this Agreement, (ii) the Company Stock --------- Purchase Agreement and (iii) the Registration Rights Agreement, dated as of the date hereof, by and among the Company and the Purchasers. "Exchange Act" shall mean the Securities Exchange Act of 1934, as ------------ amended, and the rules and regulations promulgated thereunder. "Governmental Authority" shall mean any foreign, Federal, state or ---------------------- local court or governmental or regulatory authority. "Indemnified Party" shall have the meaning set forth in Section 7.1. ----------------- "Indemnifying Party" shall have the meaning set forth in Section 7.1. ------------------ "Knowledge", "to the knowledge of" and any similar language shall --------- ------------------- mean, except as otherwise set forth in this Agreement, the best knowledge, after due inquiry, of the executive officers of any Purchaser, or of the Sellers. "Lien" shall mean any pledge, lien, claim, restriction, charge or ---- encumbrance of any kind. "Material Adverse Effect" shall mean a material adverse effect (i) on ----------------------- the business, operations, properties, earnings, assets, liabilities or condition (financial or other) of the Company and its Subsidiaries, taken as a whole, or (ii) on the ability of the Company or its Subsidiaries to perform its obligations hereunder or under any of the other Documents. "Notices" shall have the meaning set forth in Section 7.2. ------- "Permitted Transferee" shall mean, as to either Purchaser, (i) the -------------------- other Purchaser, (ii) any subsidiary of PPG and (iii) any subsidiary of FEL. "person" shall mean any individual, partnership, corporation, limited ------ liability company, joint venture, association, joint- stock company, trust, unincorporated organization, government or agency or political subdivision thereof, or other entity. "Purchase Agreement" shall mean this Agreement. ------------------ "Purchaser" shall have the meaning set forth in the Preamble. --------- "Shares" shall have the meaning set forth in Section 2.1(a) hereof. ------ "Securities" shall mean the Shares and any other Common Stock of the ---------- Company. "Securities Act" shall mean the Securities Act of 1933, as amended, -------------- and the rules and regulations thereunder. "subsidiary" shall mean, with respect to any person, (a) a corporation ---------- a majority of whose capital stock with voting power, under ordinary circumstances, to elect directors is at the time, 2 directly or indirectly, owned by such person, by a subsidiary of such person, or by such person and one or more subsidiaries of such person or (b) a partnership in which such person or a subsidiary of such person is, at the date of determination, a general partner, or any other person (other than a corporation) in which such person, a subsidiary of such person or such person and one or more subsidiaries of such person, directly or indirectly, at the date of determination thereof, has (i) at least a majority ownership interest, (ii) the power to elect or direct the election of the directors or other governing body, or (iii) the power to direct or cause the direction of the affairs or management. For purposes of this definition, a person is deemed to own any capital stock or other ownership interest if such person has the right to acquire such capital stock or other ownership interest, whether through the exercise of any purchase option, conversion privilege or similar right. "Taxes" shall mean all foreign, federal, state and local taxes, ----- including any interest, penalties or additions to tax that may become payable in respect thereof, imposed by any Governmental Authority, which taxes shall include, without limiting the generality of the foregoing, all income taxes, payroll and employee withholding taxes, unemployment insurance, social security, sales and use taxes, excise taxes, franchise taxes, gross receipts taxes, occupation taxes, real and personal property taxes, stamp taxes, transfer taxes, workmen's compensation taxes and other obligations of the same or a similar nature, whether arising before, on or after the Closing Date. ARTICLE II. SALE AND PURCHASE Section 2.1 Sale of Shares. On the date hereof, and upon the terms -------------- set forth in this Agreement, each Seller shall sell to each Purchaser, severally and not jointly, and each Purchaser shall purchase and accept from each Seller, payable in immediately available funds, the number of shares of Common Stock set forth opposite each Purchaser's name on Exhibit A hereto, at a purchase price of $2.10 per share (the aggregate number of shares of Common Stock being sold hereinafter being referred to herein as the "Shares"). Section 2.2 Closing. ------- (a) The closing of the purchase and sale of the Shares hereunder and of the other shares of Common Stock under the Company Stock Purchase Agreement (the "Closing") shall take place on the date hereof, at the ------- offices of Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, NY 10019, or at such other time and place as the parties hereto shall agree in writing. (b) At the Closing (i) each Purchaser shall deposit into one or more bank accounts designated by each Seller, by wire transfer of immediately available funds, an amount equal to the purchase price of the Shares being purchased by such Purchaser from such Seller pursuant to Section 2.1 and (ii) such Seller shall deliver to each Purchaser, against payment of the purchase price therefor, a stock certificate or stock certificates representing the Shares being 3 purchased from such Seller by such Purchaser pursuant to Section 2.1. The stock certificates shall be duly endorsed or accompanied by appropriate stock powers duly endorsed in blank and evidence of payment of any applicable stock transfer tax which may be incurred as a result of the transfer of the Shares. ARTICLE III. REPRESENTATIONS AND WARRANTIES OF THE SELLERS Each Seller represents and warrants, as to itself only and severally and not jointly, to the Purchasers as follows (except that the representation in Section 3.6 is made only by Walker): Section 3.1 Authorization; Enforceability. Such Seller has duly ----------------------------- executed and delivered this Agreement. This Agreement constitutes, assuming due execution by the other parties hereto, the legal, valid and binding obligation of such Seller enforceable against him or it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Section 3.2 No Violation; Consents. ---------------------- (a) The execution, delivery and performance by such Seller of this Agreement and the consummation of the transactions contemplated hereby does not and will not contravene any Applicable Law and will not (x) violate, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contract, lease, loan agreement, mortgage, security agreement or other agreement or instrument to which such Seller is a party or by which either he or it or his or its properties or assets is subject or (y) result in the creation or imposition of any Lien (other than a Permitted Lien) upon any of the properties or his assets. (b) Except as set forth on Schedule 3.2(b), no consent, authorization or order of, or filing or registration with, any Governmental Authority or other person is required to be obtained or made by such Seller for the execution, delivery and performance of this Agreement, or the consummation of any of the transactions contemplated hereby. Section 3.3 Litigation. Except as set forth on Schedule 3.3, to ---------- such Seller's knowledge, the sale of the Shares pursuant to this Agreement has no been and has not been threatened to be, restrained or enjoined (either temporarily, preliminarily or permanently), and no material adverse conditions have been imposed thereon by any Governmental Authority or arbitrator. Section 3.4 No Integrated Offering. Neither such Seller, nor any ---------------------- person acting on its behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require the registration of the Shares under the Securities Act. 4 Section 3.5 Ownership of Shares. All of the Shares being sold by ------------------- such Seller are duly authorized and validly issued, fully-paid and non- assessable, with no personal liability attaching to the ownership thereof and free and clear of any taxes, liens or other encumbrances. Assuming the truth and accuracy of each Purchaser's representations and warranties contained in Section 4, the offers and sales of the Shares as contemplated hereby and the deliveries to the Purchasers of the Shares are exempt from registration under the Securities Act and under applicable state securities and "blue sky" laws. Such Seller is the sole record and beneficial owner of such Shares. Upon delivery by such Seller of the certificates representing the Shares being sold by such Seller and payment therefor by the Purchasers as provided in Section 2.2 hereof, the Purchasers will acquire valid and marketable title to such Shares free and clear of any encumbrances, except for restrictions on transfer imposed by the Securities Act and state securities laws and any restrictions arising as a result of the Purchasers. Section 3.6 Additional Representation. To the actual knowledge of ------------------------- Walker without having made any inquiry, the representations and warranties of the Company to the Purchasers in Sections 3.6, 3.8, 3.9, 3.20 and 3.24 of the Company Stock Purchase Agreement, an executed copy of which has been furnished to Walker along with any related schedules, are correct in all material respects, except as disclosed in the Company's reports and filings under the Exchange Act or on the disclosure schedules to the Company Stock Purchase Agreement. ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS Each of the Purchasers hereby represents and warrants, each as to itself only and each severally and not jointly, to the Sellers as follows: Section 4.1 Organization and Standing; Authorization; ----------------------------------------- Enforceability; No Violations; Non-Affiliates. - --------------------------------------------- (a) Such Purchaser is duly organized, validly existing and in good standing as a domestic corporation under the laws of the British Virgin Islands and has all requisite corporate power and authority to own its properties and assets and to carry on its business as it is now being conducted. (b) Such Purchaser has the corporate power to execute, deliver and perform its obligations under each of the Documents and has taken all necessary action to authorize the execution, delivery and performance by it of each of the Documents and to consummate the transactions contemplated hereby and thereby. No other corporate proceedings on the part of such Purchaser are necessary therefor. (c) Such Purchaser has duly executed and delivered this Agreement and, at the Closing, will have duly executed and delivered the other Documents to which it is a party. This Agreement constitutes, and each of the other Documents to which such Purchaser is a party, when executed and delivered by such Purchaser and, assuming the due execution by the other parties hereto and thereto, will constitute legal, valid and binding obligations of such Purchaser, enforceable 5 against it in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). (d) For purposes of the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended, and the rules promulgated thereunder, FEL and PPG are not "affiliates" (as defined therein) of each other and the purchase of the Shares by the Purchasers would not be aggregated. Section 4.2 Consents. No consent, authorization or order of, or -------- filing or registration with, any Governmental Authority or other person is required to be obtained or made by such Purchaser for the execution, delivery and performance by such Purchaser of this Agreement or any of the other Documents or the consummation by the Purchaser of any of the transactions contemplated hereby or thereby other than those required for the Closing that will have been made or obtained on or prior to the Closing Date. Section 4.3 Investment Representations. Such Purchaser is capable -------------------------- of evaluating the risks and merits of its investment in the Shares and has the capacity to protect its owns interests. Such Purchaser is acquiring the Shares for investment for its own account and not with a view to, or for resale in connection with, any distribution thereof, and it has no present intention of selling or distribution the Shares. It understands that the Shares have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent as expressed herein. Such Purchaser acknowledges that, because they have not been registered under the Securities Act, the Shares it is purchasing must be held indefinitely unless subsequently registered under the Securities Act or an exemption from such registration is available. ARTICLE V. COVENANTS OF THE SELLERS Section 5.1 Agreement to Take Necessary and Desirable Actions. The ------------------------------------------------- Sellers shall execute and deliver such other documents, certificates, agreements and other writings and take such other actions as may be necessary, desirable or reasonably requested by the Purchasers in order to consummate or implement as expeditiously as practicable the transactions contemplated hereby. Section 5.2 Other Consents and Approvals. The Sellers shall (a) ---------------------------- use commercially reasonable efforts to obtain all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of the Company, all other persons, firms or corporations required in connection with the execution, delivery and performance by them of this Agreement, any other Document or any of the transactions contemplated hereby or thereby, and (b) assist and cooperate with the Purchasers in preparing and filing all documents required to be submitted by the Purchasers to any Governmental Authority in connection with such transactions and in obtaining any governmental consents, waivers, authorizations or approvals which may be required to be obtained by the Purchasers in connection with such transactions (which assistance and 6 cooperation shall include, without limitation, timely furnishing to the Purchasers all information concerning the Sellers that counsel to the Purchasers reasonably determines is required to be included in such documents or would be helpful in obtaining any such required consent, waiver, authorization or approval). ARTICLE VI. COVENANTS OF EACH PURCHASER Section 6.1 Agreement to Take Necessary and Desirable Actions. The ------------------------------------------------- Purchaser shall execute and deliver such other documents, certificates, agreements and other writings and take such other actions as may be necessary, desirable or reasonably requested by the Sellers in order to consummate or implement as expeditiously as practicable the transactions contemplated hereby. Section 6.2 Compliance with Conditions; Commercially Reasonable --------------------------------------------------- Efforts. The Purchaser shall use commercially reasonable efforts to cause all of - ------- the obligations imposed upon it in this Agreement to be duly complied with and to cause all conditions precedent to the obligations of the Company and the Purchasers to be satisfied. Upon the terms and subject to the conditions of this Agreement, the Purchaser shall use its best efforts to take, or cause to be taken, all action, and to do, or cause to be done, all things necessary, proper or advisable consistent with Applicable Law to consummate and make effective in the most expeditious manner practicable the transactions contemplated hereby. ARTICLE VII. MISCELLANEOUS Section 7.1 Survival of Representations and Warranties. ------------------------------------------ (a) All representations, warranties, and agreements (except agreements which are expressly required to be performed and are performed in full on or before Closing) contained in this Agreement shall survive such Closing for a period ending on the later to occur February 28, 2002 or fourteen (14) days following the Company's issuance of a press release or similar public announcement with respect to the Company's financial results for the year ended December 31, 2001 provided that in no event shall the foregoing period survive for later than August 15, 2002, except that, with respect to claims asserted pursuant to this Section 7.1 before the expiration of the applicable representation, warranty and agreements such claims shall survive until the date they are finally liquidated or otherwise resolved. All covenants shall survive in accordance with their own terms. All statements as to factual matters contained in any certificate executed and delivered by the parties pursuant hereto shall be deemed to be representations, warranties and covenants by such party hereunder. No claim may be commenced under this Section 7.1 (or otherwise) following expiration of the applicable period of survival, and upon such expiration the Indemnifying Party shall be released from all liability with respect to claims under each such section not theretofore made by the Indemnifying Party. No right of indemnity against any claim of a third party shall arise from any representation, warranty or covenant of an Indemnifying Party herein contained, unless such third party claim is filed or lodged against the Indemnified Party on or prior 7 to the expiration of the applicable period of survival provided above, and all other conditions hereunder are satisfied. A claim shall be made or commenced hereunder by the Indemnified Party delivering to the Indemnifying Party a written notice specifying in reasonable detail the nature of the claim, the amount claimed (if known or reasonably estimable), and the factual basis for the claim. (b) (i) Each Seller, separately and not jointly, agrees to indemnify and hold harmless, on an after-Tax basis, each of the Purchasers and its partners, Affiliates, officers, directors, employees and duly authorized agents and each of their affiliates and each other person controlling such Purchaser or any of its Affiliates within the meaning of either section 15 of the Securities Act or section 20 of the Exchange Act and any partner of any of them from and against all losses, claims, damages or liabilities resulting from any claim, lawsuit or other proceeding by any person to which any party indemnified under this clause may become subject which is related to or arises out of any breach of the representations and warranties set forth in Sections 3.1, 3.2, 3.3, 3.4 and 3.5 of this Agreement by such Seller and will reimburse each of the Purchasers and any other party indemnified under this clause for all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) incurred by each Purchaser or any such other party indemnified under this clause and further agrees that the indemnification and reimbursements commitments herein shall apply whether or not such Purchaser or any such other party indemnified under this clause is a formal party to any such lawsuits, claims or other proceedings. The foregoing provisions are expressly intended to cover reimbursement of legal and other expenses incurred in a deposition or other discovery proceeding. (ii) Notwithstanding the foregoing clause (i), such Seller shall not be liable to any party otherwise entitled to indemnification pursuant thereto: (A) in respect of any loss, claim, damage, liability or expense to the extent the same is determined, in final judgment by a court having jurisdiction, to have resulted from the gross negligence or willful misconduct of such party or (B) for any settlement effected by such party without the written consent of such Seller, which consent shall not be unreasonably withheld or delayed. (c) If a person entitled to indemnity hereunder (an "Indemnified Party") asserts that any party hereto (the "Indemnifying Party") ----------------- ----------------- has become obligated to the Indemnified Party pursuant to Section 7.1(b), or if any suit, action, investigation, claim or proceeding is begun, made or instituted as a result of which the Indemnifying Party may become obligated to the Indemnified Party hereunder, the Indemnified Party agrees to notify the Indemnifying Party promptly and to cooperate with the Indemnifying Party, at the Indemnifying Party's expense, to the extent reasonably necessary for the resolution of such claim or in the defense of such suit, action or proceeding, including making available any information, documents and things in the possession of the Indemnified Party which are reasonably necessary therefor. Notwithstanding the foregoing notice requirement, the right to indemnification hereunder shall not be affected by any failure to give, or delay in giving, notice unless, and only to the extent that, the rights and remedies of the Indemnifying Party shall have been materially prejudiced as a result of such failure or delay. (d) In fulfilling its obligations under this Section 7.1, after providing each Indemnified Party with a written acknowledgment of any liability under this Section 7.1 as 8 between such Indemnified Party and the Indemnifying Party, the Indemnifying Party shall have the right to investigate, defend, settle or otherwise handle, with the aforesaid cooperation, any claim, suit, action or proceeding brought by a third party in such manner as the Indemnifying Party may in its sole discretion deem appropriate; provided, however, that (i) counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party will not consent to any settlement imposing any obligations on any other party hereto, unless such party has consented in writing to such settlement. Notwithstanding anything to the contrary contained herein, the Indemnifying Party may retain one firm of counsel to represent all Indemnified Parties in such claim, action or proceeding; provided, however, that in the event that the defendants in, or targets of, any such claim, action or proceeding include more than one Indemnified Party, and any Indemnified Party shall have reasonably concluded, based on the opinion of its own counsel, that there may be one or more legal defenses available to it which are in conflict with those available to any other Indemnified Party, then such Indemnified Party may employ separate counsel to represent or defend it or any other person entitled to indemnification and reimbursement hereunder with respect to any such claim, action or proceeding in which it or such other person may become involved or is named as defendant and the Indemnifying Party shall pay the reasonable fees and disbursement of such counsel. Notwithstanding the Indemnifying Party's election to assume the defense or investigation of such claim, action or proceeding, the Indemnified Party shall have the right to employ separate counsel at the expense of the Indemnifying Party and to direct the defense or investigation of such claim, action or proceeding if (A) in the written opinion of counsel to the Indemnified Party, use of counsel of the Indemnifying Party's choice could reasonably be expected to give rise to a conflict of interest, or (B) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time (as determined in the light of the facts and circumstances surrounding such event), but in no event shall such time exceed twenty (20) Business Days, after notice of the assertion of any such claim or institution of any such action or proceeding. In all other situations, the Indemnified Party shall have the right to participate in the defense or investigation of such claim, action or proceeding if the Indemnifying Party shall authorize the Indemnified Party to employ separate counsel at the Indemnifying Party's expense or if the fees and expenses of counsel for the Indemnified Party shall be borne by the Indemnified Party. (e) If for any reason (other than the gross negligence or willful misconduct referred to in subclause (b)(ii) above) the foregoing indemnification by a Seller is unavailable to any Indemnified Party or is insufficient to hold it harmless as and to the extent contemplated by subclauses (b), (c) and (d) above, then such Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative benefits received by such Seller, on the one hand, and the Purchasers and any other applicable Indemnified Party, as the case may be, on the other hand, as well as any other relevant equitable considerations. Section 7.2 Notices. All notices, demands, requests, consents, ------- approvals or other communications (collectively, "Notices") required or ------- permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be personally served, delivered by a reputable air courier service with tracking capability, with charges prepaid, or transmitted by hand delivery or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice. Notice shall be deemed given on the date of service or 9 transmission if personally served or transmitted by facsimile, provided the sender receives evidence of complete transmission without error. Notice otherwise sent as provided herein shall be deemed given on the next business day following delivery of such notice to a reputable air courier service. If to the Sellers, to it at: Mr. Jay Walker Walker Digital Corporation Five High Ridge Park Stamford, Connecticut 06905 Attention: Jay Walker Facsimile: (203) 461-7188 with a copy (which shall not constitute notice) to: Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, Delaware 19801 Attention: Patricia Moran, Esq. Facsimile: (302) 651-3001 If to the Purchasers, as follows: FORTHCOMING ERA LIMITED Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands with a copy to: HUTCHISON WHAMPOA LIMITED 22/F Hutchison House 10 Harcourt Road Central Hong Kong Attention: Company Secretary Facsimile: (852) 2128 1778 and: PRIME PRO GROUP LIMITED c/o 8/F, Cheung Kong Center 2 Queen's Road Central 10 Hong Kong Attention: Mr. Edmond Ip Facsimile: (852) 2845 2057 Section 7.3 Governing Law. This Agreement and the rights and ------------- obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York, and each party hereto submits to the non-exclusive jurisdiction of the state and federal courts within the County of New York in the State of New York. Section 7.4 Entire Agreement. This Agreement (including all ---------------- agreements entered into pursuant hereto and all certificates and instruments delivered pursuant hereto and thereto) constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties or their Affiliates, whether oral or written, with respect to the subject matter hereof. Section 7.5 Modifications and Amendments. No amendment, ---------------------------- modification or termination of this Agreement shall be binding upon any other party unless executed in writing by the parties hereto intending to be bound thereby. Section 7.6 Waivers and Extensions. Any party to this Agreement ---------------------- may waive any right, breach or default which such party has the right to waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts. Section 7.7 Titles and Headings. Titles and headings of sections ------------------- of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. Section 7.8 Exhibits and Schedules. Each of the annexes, exhibits ---------------------- and schedules referred to herein and attached hereto is an integral part of this Agreement and is incorporated herein by reference. Section 7.9 Expenses; Brokers. Each party shall pay its own costs ----------------- and expenses in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby, including without limitation, fees and disbursements of counsel, financial advisors and accountants. The Sellers shall pay any and all stamp, transfer and other similar Taxes payable or determined to be payable in connection with the execution and delivery of this Agreement or the transfer of the Shares, and shall save and hold each of the Purchasers harmless from and against any and all liabilities with respect to or resulting from any delay in paying, or omission to 11 pay, such Taxes. Each of the parties represents to the others that neither it nor any of its Affiliates has used a broker or other intermediary, in connection with the transactions contemplated by this Agreement for whose fees or expenses any other party will be liable and respectively agrees to indemnify and hold the others harmless from and against any and all claims, liabilities or obligations with respect to any such fees or expenses asserted by any person on the basis of any act or statement alleged to have been made by such party or any of its Affiliates. Section 7.10 Press Releases and Public Announcements. All press --------------------------------------- releases and similar public announcements relating to the transactions contemplated by the Documents shall be made only if mutually agreed upon by the Sellers and each of the Purchasers, except to the extent that such disclosure is, in the opinion of counsel, required by law or by stock exchange regulation; provided that any such required disclosure shall only be made, to the extent consistent with law, after consultation with each of the Purchasers. Section 7.11 Assignment; No Third Party Beneficiaries. This ---------------------------------------- Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by either the Sellers or the Purchasers without the prior written consent of the other parties hereto; provided that each Purchaser may assign or delegate its rights, duties and obligations hereunder to a Permitted Transferee or to such other person as may be reasonably satisfactory to the Sellers. Except as provided in the preceding sentence, any assignment or delegation of rights, duties or obligations hereunder made without the prior written consent of the other parties hereto shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and their respective successors and permitted assigns. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Sections 7.1 and 7.11. Section 7.12 Severability. This Agreement shall be deemed ------------ severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable. Section 7.13 Counterparts; Facsimile. This Agreement may be ----------------------- executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. All documents and closing deliveries for the transactions contemplated by this Agreement may be delivered by a party at the Closing via facsimile; provided, that, the originally executed signature pages and original documents are delivered to the appropriate parties within two (2) business days following the Closing. Section 7.14 Further Assurances. Each party hereto, upon the ------------------ request of any other party hereto, shall do all such further acts and execute, acknowledge and deliver all such further instruments and documents as may be necessary or desirable to carry out the transactions contemplated by this Agreement, including, in the case of the Sellers, such acts, instruments and documents as may be necessary or desirable to convey and transfer to each Purchaser the Shares to be purchased by it hereunder. 12 Section 7.15 Remedies Cumulative; No Consequential Damages. The --------------------------------------------- remedies provided herein shall be cumulative and shall not preclude the assertion by any party hereto of any other rights or the seeking of any remedies against the other party hereto. In no event shall any party be liable to another party or to any indemnitee hereunder for any special or consequential damages arising in connection with this Agreement or the purchase and sale of the Shares pursuant hereto. * * * 13 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. _____________________________ Jay Walker JAY S. WALKER IRREVOCABLE CREDIT TRUST By:__________________________ Name: Title: PRIME PRO GROUP LIMITED By:__________________________ Name: Title: FORTHCOMING ERA LIMITED By:__________________________ Name: Title: EXHIBIT A --------- Shares to be Purchased - ----------------------
Purchaser Sellers No. of Aggregate Shares Purchase Price Prime Pro Group Limited Jay Walker 4,491,861 $9,432,908.10 Prime Pro Group Limited Jay S. Walker 1,150,000 $2,415,000.00 Irrevocable Credit Trust Forthcoming Era Limited Jay Walker 4,491,861 $9,432,908.10 Forthcoming Era Limited Jay S. Walker 1,150,000 $2,415,000.00 Irrevocable Credit Trust
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